When parties separate, several issues may need to be considered, negotiated, and resolved. For example, parents will have to turn their minds to parenting schedules, decision-making responsibility and child support. All separating spouses may need to consider spousal support, property division, etc.
These issues can often be complicated and convoluted and can take months (and sometimes years) to resolve on a final basis.
Although the process of separation can sometimes be long drawn out, there are some important timelines and time considerations that separating parties should keep in mind.
It is highly recommended that you consult with a family law lawyer about the timelines and/or timing that may be relevant to your family law matter. If you do not consult with a family lawyer regarding your particular matter, you risk missing important deadlines and/or being unaware of crucial timelines.
Divorce applications may be filed at anytime
There is no time limit associated with obtaining a divorce.
Either party can apply for a divorce at any time (provided that they can satisfy one of the factors required for filing for a divorce: one-year separation, adultery, or cruelty).
Parenting timelines may impact the evaluation of a child’s best interests
Parents are not barred by time limits to bring claims for decision-making responsibility (formerly, custody) or parenting time (formerly, access).
However, timing can be important for parenting claims because the “status quo” can be a crucial factor when determining a child’s best interests.
Child and spousal support timelines may affect support claims
Generally, there are no time limits barring applications or claims for child support or spousal support, so parties may bring claims for support at any time.
However, timing can be crucial for support claims.
For child support claims, parties must be mindful that child support claims should be made when children are still considered ‘children’ (if a child has aged out of being entitled to receive child support, bringing a claim for child support after that may be futile). The timing of a child support request or claim can also be an important factor when seeking retroactive child support.
For spousal support claims, ‘need’ is a criterion or factor that can impact entitlement, quantum, and duration of spousal support. So, the longer a party waits to make a claim for spousal support, the more likely it is that the timing of the claim will influence the support that is ordered and received.
Property division limitation periods are strict and consequential
Although limitation periods do not come up for other corollary issues in family law, they are absolutely crucial to property division.
A limitation period is a legal specified period of time beyond which an action, claim, right or entitlement may be entirely defeated or extinguished. Simply put, limitation periods serve as a time limit within which a claim must be made.
Married spouses seeking to make a claim for equalization should be mindful that their legal claim or defence may be prejudiced or lost if parties do not take appropriate steps within the timelines prescribed by section 7(3) of the Family Law Act. Pursuant to this section, married spouses are to make a claim for equalization within the earliest of the following:
- 6 months after the death of the first spouse;
- 2 years after a divorce has been ordered, or
- 6 years from the parties’ date of separation. If a party fails to make a claim within these periods, their claim may be barred and lost.
Common Law Partners
Common-law partners are not entitled to seek a formal equalization of their net family property, but if they wish to make a beneficial interest claim (i.e. a result trust or constructive trust), they must make such a claim within 2 years from their date of separation for non-real property (i.e. pensions, RRSPs, savings, etc.), or within 10 years from their date of separation for real property (i.e. real estate). If such a claim is not made within these periods, their claim may be barred and lost.
Contact GDH Family Law for more information
At GDH Family Law in Vaughan, our team of skilled family and divorce lawyers are well-versed in the ways in which timing can impact a party’s claim. If you have questions about limitation periods or the timing of any claims, or your family law matter in general, please contact us online or call us at 416-535-6944 to schedule a free initial consultation.